Polygamy in the High Court

The Sunday Times reported yesterday that the High Court will soon rule on the validity of an Irish citizen’s marriage under s. 29 of the Family Law Act, 1995. The man is Lebanese. He married two women in Lebanon, where polygamous marriage is permitted. He entered Ireland with his second wife and claimed asylum. His first wife arrived in Ireland much later. The man has children with both and apparently lives with both in Ireland. Seven years ago the Department of Justice had refused to grant a visa to the man’s first wife. However, after the man challenged the refusal in the High Court, the Department agreed to quash its initial refusal. As part of this settlement, the man is required to seek a s. 29 ruling. The Times reports that ‘[t]he state and the wives are all represented in the case. The residency rights of both spouses will depend on the decision. A number of similar cases are awaiting the outcome.’ The case looks to be (or is very similar to) that of Hussein Ali Hamoud. The Irish Independent reported on his case in 2003 here. There is been remarkably little media discussion of the case today. Marian Finucane discussed the issue, to some extent, on RTE Radio 1 yesterday. The podcast is here (from minute 21). The Examiner also published a short opinion piece.

Three issues of interest arise from the Times report:

First, the Times reports that ‘[i]n 2004 the justice department introduced a requirement that Muslims seeking naturalisation sign a form confirming they had only one wife and would not marry a second one.’ At the time, the Irish Council for Civil Liberties criticized the requirement. Here is a small part of the press release published by the Council at the time:

Irish law does not recognise polygamous marriages. Therefore, if a Muslim man who already had one wife was to marry an Irish citizen, that marriage would not be considered to subsist in Irish law – therefore the question of applying for citizenship would not arise. If the Muslim man is lawfully married to an Irish citizen and wanted to enter into another marriage in Irish law, he would not be permitted to unless he was lawfully divorced from his previous wife – therefore he is being asked to swear to a situation that cannot arise in Irish law. Therefore the affidavit has no legal value or validity. It assumes that as Islam as a religion will permit – but does not require or promote polygamy – that Muslims, irrespective of whether they come from secular societies or states that do not recognise polygamy, do not understand or would not respect the normal law of the land because they are “different”. It shows a deep lack of respect for the Muslim community in Ireland – both Irish nationals and non-Irish nationals – who live here in complete accordance with our laws. It belies an ignorance about the many millions of Muslims around the world who live in monogamous marriages, and live in countries, predominantly Muslim or not, where polygamous marriages are also not permitted in law. Muslims in Ireland are required to – and do – live in accordance with the Irish law, irrespective of their religious faith and the swearing of an affidavit regarding their religion, because it has no objective basis or rationale is discriminatory.

Second, the Times quotes the Department as saying that “[t]he Irish Supreme Court in 1989 determined that polygamous marriages and potentially polygamous marriages are not valid and not entitled to recognition in Irish law.” This statement involves a fair reading of Conlon v. Mohamed[1989] I.L.R.M. 523. However, it is possible to deny polygamous marriage the ‘status’ of marriage under Irish law, while simultaneously recognising the relationship between spouses in a polygamous relationship for other purposes, especially where financial support obligations are concerned. Courts in Canada and in South Africa have been especially creative in this regard. A refusal to recognise both of this man’s marriages as marriages may not spell the end for accommodation of polygamy at Irish law.

Third, the Times quotes the Immigrant Council of Ireland as saying that the case highlights the need for the government to address gaps in immigration legislation dealing with family reunification. On its Facebook page the ICI reminds us that:

it has been calling on the Government, for years now, to set down clear rules about who qualifies to live in Ireland as the family member of an Irish citizen or migrant. It has yet to do so and the Immigration, Residence and Protection Bill 2008, currently awaiting Report Stage in the Dáil, is silent on this issue. The EU Family Reunification Directive, which Ireland has “opted out” of, specifies that a migrant in polygamous marriages coming to Europe may bring one spouse. Ireland has no legislation.